Texas AG Greg Abbott argues that he can’t be sued for discriminating against gay employees

Jul 28, 2010

Greg Abbott

Last November we reported on a lawsuit filed by Vic Gardner of Tyler, who alleges that he was forced out of his job with the state attorney general’s office for being gay.

Jason C.N. Smith of Fort Worth, who’s representing Gardner in his suit against a former supervisor and AG Greg Abbott, reports that the case is set for a hearing in an Austin district court next Tuesday.

Smith said the AG’s office has field a motion seeking to dismiss the case, on grounds that Abbott can’t be sued for damages for discriminating against people on the basis of sexual orientation.

Although Texas has no statute prohibiting anti-gay job discrimination, courts have held that gay and lesbian government employees are protected by constitutional principles such as privacy and equal protection, Smith said. Still, he said it’s possible that Abbott would appeal the case all the way to the Texas Supreme Court.

“My hope is that the Texas Supreme Court would follow the lead of the U.S. Supreme Court and hold that gays are protected under the constitution,” Smith said. “I think certainly the law is very clear. It’s just a matter of whether they’re going to play politics with the gay community.

“Greg Abbott’s record both as a Supreme Court justice and as Texas attorney general, he’s not one who’s embraced giving everyone equal rights, so it doesn’t surprise me that he doesn’t s think folks who are fired because they’re gay should be able to recover damages,” Smith added.

Garder, who’d worked for the AG’s child support division for about three years, says he resigned after repeatedly being unfairly disciplined. Despite Gardner’s above-average job performance, according to the lawsuit, Gardner’s supervisor had directed him to “not be so out.”

Gardner is seeking reinstatement to a similar position and back pay, as well as a declaration by the AG’s office that he was discriminated against and a pledge not to do so going forward.